Response by Thompsons Solicitors – November 2006

About Thompsons

Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.

Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time the firm will be running 70,000 claims.

Thompsons has responded to each of the consultations relating to the Compensation Act. The key concerns which have emerged for us, as a result of these exercises, are:

1)That liability insurers should not be exempted from regulation, particularly in respect of handling claims by third parties against their policy holders. 2) The definition of a union member should simply refer to that in a union's rule book. 3) The Regulator should have effective powers to enforce the regulations and impose meaningful penalties on those that breach it. 4) Before the Event insurance is a form of claims farming and should be regulated as such. 5) The requirement on businesses to ascertain whether a client has alternative funding must include trade union funding.

The Draft Code

General comments

Thompsons welcomes the exemption of trade unions from regulation. The draft code of practice is a constructive and helpful approach to ensuring that trade unions can continue to provide high quality, expert legal advice to their members.

It is very welcome that this code does not seek to place burdens on unions that could result in them being unable to comply.

However, as we have said in earlier responses, unions will be in difficulty complying with the code if the definition of member remains as restrictive as is proposed. There are sections of trade union membership who benefit from union membership services, including legal services, who would be excluded by the proscriptive definition of member as either full or retired. Those unions which offer legal services to associate and student members (and there are a number who do either or both), will have to seek authorisation from the regulator or cease to provide the service.

What of the ex-member who develops an asbestos related disease many years after leaving the employment during which he was exposed? Unions have, in our experience, backed such a case, not by insisting the ex-member join up again in full, but by dealing with the individual as an associate member.

Some unions also have membership for those who take career breaks or are on maternity leave. Ultimately the unions’ rule books provide the definitions and scope of membership and those definitions should be allowed to stand.

Unions offering friends and family legal assistance schemes will, on the current wording, be in similar difficulty and may have to withdraw this valuable service, one that offers greater access to justice, something championed by the government.

This cannot be the intention of the government.

Specific points

Initiating claims

1. We welcome the support given here (though the figure 1 does not, but should, appear next to not under this paragraph) to the principle that trade unions should give honest, impartial advice to members about whether to pursue a claim and that they do so giving consideration to the best interests of both an individual and the collective.

This provides essential backing to a union which considers that pursuing an individual member’s claim is not in the best interest of a group of members.

This is what unions have always done. Unlike claims management firms and BTE providers, a trade union has a long term interest in the outcome of claims and its relationship with its members.

Claims management firms and BTE providers have no such interest in the outcome of cases, which again underlines why it is wrong to exempt third party liability insurers from regulation.

1.3 gives unions the discretion not to pursue a claim on behalf of a member. We welcome this.

Funding claims

2. While we support the statement, this is something that already happens.

2.1 We welcome the lack of proscription about what a trade union must tell a member about the use of any fees. If there is any suggestion emerging from the consultations that serious consideration is being given to proscribing what unions must tell their members, it is essential that the unions are given the opportunity to comment further.

2.4 It is not clear from this point whether it is for the union alone to inform the member of alternative funding methods or for their solicitors also. This should be clarified since the correspondence a member receives directly from their union about their case tends to be in order to monitor the quality of the service, rather than being about the mechanics of their claim.

While it is important that members are informed of alternative funding methods where fees are payable, it is equally important that they are told that the quality of that alternative may not be as high as the union’s legal service. A union and its solicitors should have the right to inform the member of that fact and to provide a member with the evidence.

This might, for example, be evidence of how quality trade union solicitors have lower turn-down rates and secure higher average damages for members.

Arrangements with Third Parties

3. We agree with this requirement.

Competence employees and workplace representatives

4. We agree with most of this paragraph but would want to see the requirement to have “appropriate training and experience” amended to “appropriate training or experience”, since experience can often be more valuable that formal training.

Complaints and Redress

5. We agree with this clause and suggest it is stated that the third party is appointed by the union.

5.1 Unions already have internal complaints procedures and ultimately a member can take a complaint to the Certification Officer or even pursue a breach of contract claim. Trade union solicitors have complaints procedures which are explained to the member in writing at the start of their claim.

It is not clear what steps to inform members of this would be deemed reasonable, but we have concerns that if workplace reps are required to hand members a form about the complaints procedure it might encourage vexatious complaints against union officers who have given advice about pursuing a claim.

We note that the code is not intended to cover advice given about workplace issues and we welcome that.

5.3 This clause gives a misleading impression that it is fairly common practice for a union to deduct fees or levy charges and, additionally, that these are made in advance of the claim being settled. This simply does not happen.

Record Keeping

6.1 We agree that records should be retained, but these should only be those legal documents that are in the case file.

It would usually be for the union solicitor rather than the union itself to retain the file.

The length of time files should be kept should be in accordance with good practice and data protection issues. Stating that records should be kept for three years appears an arbitrary figure.

Definitions and scope

Members

We do not accept the definition of member. As stated earlier, the definition is too proscriptive and will prevent unions providing high quality legal services to some sections of the membership who are entitled, under the union rule book, to receive them.